Delaware’s Fiduciary Imagination: Going-Privates and Lord Eldon’s Reprise

What is the source of the duties that a fiduciary owes, and what are those fiduciary duties designed to do? In a recent article, Delaware’s Fiduciary Imagination: Lord Eldon’s Reprise, I argue that Delaware law is deeply conflicted about the answers to these questions, conflict that is having a deleterious effect on the quality of Delaware law.

The article argues that Delaware corporate law deploys the concept of the fiduciary and fiduciary duties to reflect two separate and wholly distinct legal ideas. The ideas have separate sources in early English and U.S. common law and equity, have structurally distinct … Read more